Citation NR: 9734815
Decision Date: 10/15/97 Archive Date: 10/24/97
DOCKET NO. 83-13 987 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUE
Entitlement to service connection for defective hearing.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant and Gataroy Mobley
ATTORNEY FOR THE BOARD
K. P. Reardon, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1944 to January
1946. By rating action of July 1963, the Columbia, South
Carolina RO denied service connection for a bilateral hearing
loss, and denied service connection for otitis externa of the
right ear. In a March 1985 decision, the Board of Veterans'
Appeals (Board) concluded that the veteran had failed to
submit new and material evidence to reopen the claim for
service connection for a bilateral hearing loss, but granted
service connection for otitis externa of the right ear.
However, in a June 1996 decision, the Board determined that a
notice sent to the veteran in August 1963, following the RO's
July 1963 rating action, erroneously informed the veteran
that service connection had been granted for a bilateral
hearing loss. Accordingly, the Board concluded that the
veteran had not received the required notice of his due
process right to appeal the issue of service connection for a
bilateral hearing loss, and that portion of the RO's July
1963 rating decision (denying service connection for a
bilateral hearing loss) was not final and vacated that part
of the March 1985 decision concerning hearing loss. In
addition, the Board determined that the issue of whether new
and material evidence had been submitted to reopen a claim
for service connection for a bilateral hearing loss was not
properly before the Board for appellate review.
In a separate decision dated in June 1996, the Board handled
the issue of entitlement to service connection for defective
hearing on a de novo basis. The case was remanded for
additional development.
The Board notes that in November 1995, a hearing was held at
the Columbia, South Carolina RO before C.W. Symanski, who is
the member of the Board rendering the determination in this
claim and was designated by the Chairman of the Board to
conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West
1991).
The Board also notes that by an August 1996 statement in
support of claim, the veteran raised the issue of entitlement
to service connection for tinnitus. Since this issue has not
been developed for appellate review, and is not inextricably
intertwined with the issue currently before the Board, it is
referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that bilateral hearing loss was incurred
during active military service as a result of noise exposure
or as a result of service-connected otitis externa of the
right ear.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
entitlement to service connection for defective hearing is
well grounded.
FINDINGS OF FACT
1. The claim for entitlement to service connection for
defective hearing is not accompanied by any medical evidence
to support that allegation.
2. The claim for entitlement to service connection for
defective hearing is not plausible.
CONCLUSION OF LAW
The appellant's claim of service connection for defective
hearing is not well grounded. 38 U.S.C.A. §§ 1110, 1112,
5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.310, 3.385
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
No complaints or findings of hearing difficulty were noted on
the veteran's entrance physical examination performed in
March 1944. The examination report indicates that a hearing
test was conducted and the veteran received a 15/15
evaluation for both ears. The examiner found the veteran's
ears to be “normal.”
Service medical records dated from March 1944 to January 1946
are negative for complaints or findings of defective hearing.
A January 1946 separation examination report records no
complaints of hearing difficulty. Otitis externa of the
right ear was indicated. The examination report indicates
that the veteran received a 40/40 evaluation for the watch
tick test; a 20/20 evaluation for the coin click test; a
15/15 evaluation for the whispered voice test; and a 15/15
evaluation for the spoken voice test.
A July 1963 VA examination report notes the veteran's history
of otitis externa and complaints of defective hearing in the
right ear. Examination revealed normal canals and eardrums.
Otitis externa was not found. Diagnosis was mixed bilateral
hearing loss, not associated with otitis externa.
The veteran underwent VA audiological examinations in 1974
and 1977. The examination reports note the veteran's
complaints of hearing loss. Upon examination, no otitis
externa was noted. Audiometric testing revealed bilateral
defective hearing.
A VA outpatient treatment report dated in March 1981 notes
the veteran's complaints of pain in both ears and hearing
loss in his right ear. Audiometric testing completed in
April 1981 revealed a moderate sensorineural hearing loss
bilaterally.
The veteran testified during an October 1983 hearing before
the Board that he was exposed to noise from ship building.
He stated that he first noticed a hearing loss “when [he] was
first getting out of service.”
By a decision dated in March 1985, the Board granted service
connection for otitis externa of the right ear.
Treatment reports from Dr. Gowdy, the veteran's private
physician, dated in 1987 note that the veteran was seen with
complaints of ear pain and hearing loss. Diagnosis was
chronic otitis externa. No audiometric testing was
performed.
The veteran underwent numerous VA audiological examinations
from 1984 to 1993. The examination reports note the
veteran's complaints of hearing loss and tinnitus. Some
complaints of right ear pain are also noted. Audiometric
testing revealed bilateral defective hearing. Examination
revealed otitis externa of the right ear.
In November 1995, the veteran testified before the Board in
Columbia, South Carolina that he was exposed to loud noises
during military service. Specifically, the veteran indicated
that he was exposed to hammering while working on the docks.
He also stated that first noticed hearing loss - in his right
ear only - at discharge.
Other evidence submitted by the veteran includes several lay
statements from his pastor, sister and friend. These
statements indicate that the veteran had normal hearing prior
to service and first experienced hearing loss in 1946.
Legal Analysis
A claimant seeking benefits under a law administered by the
Secretary of the VA shall have the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded. The
Secretary has the duty to assist a claimant in developing
facts pertinent to the claim if the claim is determined to be
well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold
question to be answered is whether the veteran has presented
a well-grounded claim; that is, a claim which is plausible.
If he has not presented a well-grounded claim, his appeal
must fail, and there is no duty to assist him further in the
development of his claim as any such additional development
would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990).
As explained below, the Board finds that the appellant’s
claim for service connection for defective hearing is not
well grounded.
To sustain a well-grounded claim, the claimant must provide
evidence demonstrating that the claim is plausible; mere
allegation is insufficient. Tirpak v. Derwinski, 2 Vet.
App. 609 (1992). The determination of whether a claim is
well grounded is legal in nature. King v. Brown, 5 Vet.
App. 19 (1993). A well-grounded claim is a plausible claim,
one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of 38 U.S.C.A.
§ 5107(a). Murphy, supra. To be well grounded, a claim must
be accompanied by supportive evidence, and such evidence must
justify a belief by a fair and impartial individual that the
claim is plausible. Where the determinative issue involves
either medical etiology or a medical diagnosis, competent
medical evidence is required to fulfill the well-grounded
claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown,
7 Vet. App. 359 (1995).
In order for a claim for service connection to be well
grounded, there must be competent evidence of a current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence) and of a nexus between the in-service injury or
disease and the current disability (medical evidence). The
nexus requirement may be satisfied by a presumption that
certain diseases manifesting themselves within certain
prescribed periods are related to service. Caluza v. Brown,
7 Vet. App. 498 (1995).
In addition, service connection may be granted for disability
which is proximately due to or the result of a service-
connected disease or injury. When service connection is thus
established for a secondary condition, the secondary
condition shall be considered a part of the original
condition. 38 C.F.R. § 3.310(a) (1996).
It should be pointed out that hearing acuity is not
considered impaired for purposes of an award of service
connection unless audiometric test results, including speech
recognition scores, have reached a certain level. The
provisions of 38 C.F.R. § 3.385 (1996) provide that:
For the purposes of applying the laws
administered by VA, impaired hearing will
be considered to be a disability when the auditory
threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or
greater; or when the auditory thresholds for at
least three of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz are 26 decibels or greater;
or when speech recognition scores using the
Maryland CNC Test are less than 94 percent.
Service medical records do not show defective hearing. Post-
service records reflect the presence of defective hearing
many years after service, but they do not medically link it
to service. While the veteran maintains that his defective
hearing is related to noise exposure in service, he is a
layman who does not have the medical expertise to make
competent conclusions as to medical causation. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
To be well-grounded, claims must be supported by evidence,
not just allegations. Tirpak, supra. The veteran says that
he has defective hearing related to service, but he has
failed to submit competent medical evidence to support his
allegations. Absent any competent medical evidence showing a
relationship between service and the hearing loss first
demonstrated in 1963, the Board finds that a well-grounded
claim of service connection has not been presented.
Grottveit v. Brown, 5 Vet. App. 91 (1993); Grivois v. Brown,
6 Vet. App. 136 (1994); Caluza, supra. Moreover, while the
requirement that there be a nexus between a current
disability and service may be satisfied by a presumption that
high frequency neurosensory hearing loss (a disease of the
nervous system) manifested itself to a compensable degree
within a year of service, evidence tending to show that this
has been the case has not been submitted. Caluza, supra.
In addition, no evidence has been submitted which tends to
show that a current hearing loss is proximately due to or the
result of the veteran's service-connected otitis externa.
38 C.F.R. § 3.310(a). In addition, evidence of post-service
defective hearing is first shown in a July 1963 VA
examination report. The examination report does not note any
symptoms or findings of otitis externa. The examiner stated
that the veteran's hearing loss was not associated with
otitis externa. Although the veteran claims a relationship
between his current hearing loss and the otitis externa that
he had in service, these assertions may not be considered
probative evidence as to the etiology of his current disorder
and are thus not competent medical evidence. When the
question involves matters that require special experience or
special knowledge, as medical causation, lay evidence is not
capable of providing a medical opinion. See Espiritu, supra.
Absent the presentation of some competent evidence that in
some fashion attributes a current hearing loss under § 3.385
to military service, the veteran's claim may not be
considered well grounded.
ORDER
The claim for entitlement to service connection for defective
hearing is denied.
C. W. SYMANSKI
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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